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The purpose of this essay is to enhance a better public understanding of the arcane dimensions and complexities arising in the case of Mazi Nnamdi Kanu from 24th September 2024 (when Justice Binta Murtala-Nyako was recused) to 10th February 2025 when Mazi Nnamdi Kanu was surprisingly summoned to appear before the same Justice. Despite our abhorrence for the summons to appear before a Judge who no longer possessed jurisdiction, we nonetheless decided to honor the summons out of respect for the sanctity of the judiciary and the overriding need to avoid the fell consequences of an in-absentia proceedings that would be legally injurious to our Client. So, we appeared with the self- assurance and confidence that the proceedings would, as a matter of law, amount to a nullity because the Judge, having been recused by an extant Order of court, no longer possessed the requisite jurisdiction to conduct the hearing. It therefore came to pass that when the case was called, I immediately went on the record to state that we appeared “under protest”, and that our “limited” appearance is specifically aimed at protecting the constitutional rights of Mazi Nnamdi Kanu and thus should, in no way, be misconstrued as succumbing to the jurisdiction of the court. Given this scenario, it therefore follows that - as far as it was conducted by a recused Judge - the infamous proceedings of 10th February 2025 carried all the elements of a “mistrial” of some sorts, to the extent that the purported order of adjournment sine die made by the Judge at the close of the “hearing” is obviously nugatory and of no legal or judicial effect whatsoever. Below are the additional reasons for our position: First of all, the process by which Honorable Justice Murtala-Nyako exited from the case as the trial judge was a “judicial event”, as it emanated from the COURT ORDER she made on 24th September 2024. A plain reading of the Order shows that Her Lordship graciously consented to the recusal and that alone amounts to an additional factor that endowed the order with more tenacity. Second, of then and now, the said Order is still extant and subsisting and was never appealed. So, it remains valid in all ramifications. To be sure, the Judge cannot REVIEW, REOPEN or REVISIT the matter of her recusal because she became FUNCTUS OFFICIO as of 24th September 2024 when the order was entered and enrolled. In Ukachukwu v. Uba (2005) 18 NWLR (Pt.956), it was held that: "The phrase "functus officio" has been defined to mean a task performed, fulfilling a function or discharging and accomplishing the intended purpose, and when it is referred to a Court, that Court will have no further force or authority in effect it would lack competence or jurisdiction in the matter anymore. It cannot review, re open or re-visit the said matter except under exceptional circumstances.” Third, the point needs to be made that the post-recusal Summons issued to Mazi Nnamdi Kanu that brought us to Court on 10th February 2025 is not to be blamed on the Court alone. The prosecution grandfathered this infamous unconstitutionality by a Letter it wrote to the same Court on 5th December 2024, requesting that the case be re-calendared for a hearing. In our prompt reaction and after a considered view that the said Letter strained the boundaries of prosecutorial misconduct, we countered with a reply, vehemently opposing re-listing the case to be heard before a Judge who is bound by an extant Order of recusal. To this date, the Chief Judge of the Federal High Court has not respondent to our Letter. Further to the foregoing, and in our efforts to foreclose what we reckoned to be a burgeoning unconstitutionality that lies in sending the case back to the recused Judge, we took the responsible step of generating a Letter to the Honorable Chief Judge of the Federal High Court, requesting for transfer of the case to the Southeast. We took this step because we were reliably informed that the “official” reason for sending the case back to the recused Judge is because no other Judge in the Abuja Division of the Federal High Court is willing to take the case. And the reason why Southeast is in play (to the exclusion of other zones) is because, being the place where the offenses were alleged to have had impact, it possesses far superior jurisdiction to every other division, including Abuja. Now, having come to this pass, the next logical question is: What’s the way forward? The answers are simple and they are as follows: a. If no Judge (other the recused Judge) in Abuja is willing to try the case, the next lawful thing to do is - on the authority of Section 45, Federal High Court Act & James Ibori v. FRN - to transfer the case to any of the Federal High Court divisions in the Southeast. b. If there’s some sort of a “secret official embargo” in having Mazi Nnamdi Kanu tried in the Southeast, you cannot keep him in an endless limbo while he’s detained as an awaiting-trial. Awaiting which trial? A trial that cannot happen in Abuja or Southeast? c. In every common law country, when a State has an insurmountable difficulty in putting a detainee on trial within a reasonable time, the next responsible and lawful option is to release such a detainee until such a time his trial can be properly conducted, subject to any statute of limitation that may be applicable. d. Under the Constitution, every criminal suspect, especially a detainee, deserves to be tried within a reasonable time, not an indefinite time, not being in detention for almost four years awaiting trial that never happens for no fault of the detainee but of the State. Additionally, the Administration of Criminal Justice Act prescribed a day-to-day trial for every criminal suspect. It becomes more urgent and compelling when such suspect is in detention, and a lengthy one to boot. e. To sum up, we make bold to say that the ball is firmly and exclusively in the court of the Federal Government, in the sense that since it has proved unable to bring Mazi Nnamdi Kanu to trial within a reasonable time, then the next best thing (which is also lawful and constitutional) is to end this whole saga honorably by releasing Mazi Nnamdi Kanu either through restoration of his unjustly revoked bail or by a prompt discontinuance of a case that was burdened by high-wire politics from its inception ten years ago in 2015.

The Mistrial Of Mazi Nnamdi Kanu

Written by Aloy Ejimakor 12th February 2025